An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-111


Filed: 21 November 2006


         v.                        Forsyth County
                                Nos.    04 CRS 62575
ANTWONE DENNARD ARCHIE,                    05 CRS 20410

    Appeal by defendant from a judgment entered 11 October 2005 by Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 16 October 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Charlene Bell Richardson, for the State.

    Richard G. Roose, for defendant-appellant.

    BRYANT, Judge.

    Antwone Dennard Archie (defendant) appeals from a judgment entered 11 October 2005 after the jury found him guilty of conspiracy to sell cocaine, possession with intent to sell and deliver cocaine, and habitual felon status. For the reasons stated below, we affirm the trial court.


    The State adduced evidence that Winston-Salem Police Officer Michael Cardwell purchased $20 worth of crack cocaine in the 1100 block of New Hope Lane in Winston Salem, North Carolina on 13 October 2004. Officer R.J. Paul asked Cardwell to attempt an undercover purchase after his surveillance revealed “street-level drug sales occurring in that area[.]” Cardwell entered the blockin an unmarked vehicle and was approached by Ricky Davis, who asked “what [he] wanted.” Cardwell requested “a twenty[.]” Davis signaled to defendant, who emerged from the porch of a nearby apartment. After telling Cardwell to wait, Davis walked over to defendant and engaged in a hand-to-hand exchange in which defendant appeared to place an object into Davis' cupped hand. Davis returned to Cardwell's vehicle and gave him a small piece of crack cocaine from the same hand used in his exchange with defendant. Cardwell paid Davis with a $20 bill bearing a pre-recorded serial number. After watching Davis conduct a second hand-to-hand exchange with defendant, Cardwell reported the buy to Paul. Paul and Officer Michael Buccino entered the area in an unmarked vehicle and saw defendant standing beside a porch. Buccino arrested defendant and found Cardwell's marked $20 bill in his wallet.
    The State presented additional evidence that defendant previously sold crack cocaine to Cardwell at the same location on 23 September 2004. On this occasion, defendant personally approached Cardwell's vehicle, took his order, retrieved the cocaine from a third party, and returned to the vehicle to complete the transaction. Evidence of this prior act was admitted pursuant to N.C. R. Evid. 404(b) and was accompanied by an appropriate limiting instruction.
    Defendant was found guilty of possession with intent sell and deliver cocaine and of conspiracy to sell cocaine, whereupon he admitted his status as an habitual felon. The trial court consolidated his offenses for judgment and sentenced him to apresumptive prison term of 136 to 173 months. Defendant gave notice of appeal in open court.

    Defendant presents a single issue on appeal: whether the trial court erred in overruling defendant's objections to questions posed at trial by counsel for the State, asking a witness to give expressions of opinion. Specifically, defendant claims the trial court erred by allowing Officer Paul to offer improper “opinion” testimony regarding defendant's behavior during and after his transactions with Cardwell on 23 September 2004 and 13 October 2004. The court overruled an objection to Paul's interpretation of a hand motion made by defendant prior to his arrest on 13 October 2004, as follows:
        A.    Once we pulled up in the area, [defendant] was facing the street, and once he observed us exiting the vehicle, he turned and walked away toward . . . New Hope Lane. . . . His hand was clutched like this, his right hand; he did something like this towards his mouth.

        Q.    Have you seen that motion before?
        A.    I've seen that motion numerous times.
        Q.    Where?
        A.    In known drug areas, known drug dealers we watch, they would eat their dope.

        Q.    Do you have an opinion about what happened when he put his hand to his mouth?

        A.    Yes. It was my opinion --
            [DEFENSE COUNSEL]: Objection, Your Honor.
            [THE COURT]: Overruled.        A.    It was my opinion that he had put a rock or some type of narcotic in his mouth to, so that we would not get it.

(Emphasis added).     Paul later testified that he asked Cardwell to attempt the purchase on 23 September 2004, after observing defendant “making numerous hand-to-hand transactions out there.” The prosecutor then asked him about defendant's retrieval of the drug from a third party, as follows:
        Q. Do you have an opinion as to why [defendant] had to go to a third person to get drugs on that day?

            [DEFENSE COUNSEL]: Objection.

            THE COURT: Overruled.

        A. It is my opinion, due to the numerous transactions I observed on that day involving [defendant], that he had sold out of drugs that day, and he had to go to Mr. Holman (phonetic) to make the deal to Detective Cardwell.

Defendant faults the court for allowing Paul to offer “unverified baseless conclusions” that defendant (1) possessed and swallowed cocaine just before his arrest on 13 October 2004, and (2) engaged in multiple sales of cocaine prior to his transaction with Cardwell on 23 September 2004. He argues that Paul's testimony exceeded the limited scope of permissible lay opinion under N.C. R. Evid. 701, because it assumed facts outside of his personal knowledge.
    Under our rules of evidence, lay testimony “in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.” N.C. R. Evid. 701. “As long asthe lay witness has a basis of personal knowledge for his opinion, the evidence is admissible.” State v. Bunch, 104 N.C. App. 106, 110, 408 S.E.2d 191, 194 (1991). Moreover, “[i]t is appropriate for law enforcement officers to testify as to various customs and practices observed by them in the exercise of their duties as officers.” State v. Martin, 97 N.C. App. 19, 29, 387 S.E.2d 211, 216 (1990) (citation omitted).
    Before offering the testimony at issue, Paul stated he had conducted narcotics investigations within the department's vice and narcotics unit for a year prior to defendant's trial. He spent the preceding eight years on foot patrol in two public housing communities, focusing on “street-level drug dealers and street- level crime in the housing community.” Paul estimated that he witnessed twenty to thirty prior occasions in which a suspect swallowed illicit drugs in response to police presence in a manner consistent with defendant's hand motion on 13 October 2004. The officer's years of experience with the methods of street-level drug offenders placed him in a better position than the jury to interpret defendant's behavior during and after his transactions with Cardwell. See State v. Friend, 164 N.C. App. 430, 437, 596 S.E.2d 275, 281 (2004); Bunch, 104 N.C. App. at 110, 408 S.E.2d at 194; see also State v. McCoy, 105 N.C. App. 686, 689, 414 S.E.2d 392, 394 (1992) (treating officer's specialized knowledge as expertise under N.C. R. Evid. 702(a), despite lack of formal tender as an expert witness). Inasmuch as Paul drew inferences only from acts of defendant which he observed firsthand, his testimony wasadmissible as lay opinion. Accordingly, defendant's assignments of error are overruled.
    No error.
    Judges TYSON and LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***